Citation NR: 9703270
Decision Date: 01/30/97 Archive Date: 02/12/97
DOCKET NO. 95-35 901 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to service connection for a low back condition.
REPRESENTATION
Appellant represented by: Missouri Veterans Commission
ATTORNEY FOR THE BOARD
William D. Teveri, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1965 to
September 1968.
This appeal arises from an April 1994 rating decision by the
Department of Veterans’ Affairs (VA) Regional Office (RO) in
St. Louis, Missouri.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that the RO was incorrect in
not granting the benefit sought on appeal. The veteran
maintains, in substance, that his current low back condition
stems from an in-service injury. Therefore, a favorable
determination has been requested.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that his claim for
service connection for a low back condition is well grounded.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran’s appeal has been obtained by the
RO.
2. There is no medical evidence of a nexus between any
currently diagnosed low back condition and an in-service
injury or disease or any other incident of service.
CONCLUSION OF LAW
The veteran’s claim for service connection for a low back
condition is not well grounded. 38 U.S.C.A.§ 5107(a) (West
1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1995).
If a condition noted during service is not shown to be
chronic, then generally a showing of continuity of symptoms
after service is required for service connection. 38 C.F.R.
§ 3.303(b) (1995).
However, the initial question which must be answered in this
case is whether the veteran has presented a well grounded
claim for service connection. In this regard, the veteran
has “the burden of submitting evidence sufficient to justify
a belief by a fair and impartial individual that the claim is
well grounded;” that is, the claim must be plausible and
capable of substantiation. See 38 U.S.C.A. § 5107(a) (West
1991); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990).
In order for a claim to be well grounded, there must be
competent evidence of current disability (established by
medical diagnosis), see Brammer v. Derwinski, 3 Vet.App. 223,
225 (1992) and Rabideau v. Derwinski, 2 Vet.App. 141, 144
(1992); of incurrence or aggravation of a disease or injury
in service (established by lay or medical evidence), see
Layno v. Brown, 6 Vet.App. 465, 469 (1994) and Cartwright v.
Derwinski, 2 Vet.App. 24, 25 (1991); and of a nexus between
the in-service injury or disease and the current disability
(established by medical evidence), see Lathan v. Brown, 7
Vet.App. 359, 365 (1995) and Grottveit v. Brown, 5
Vet.App. 91, 93 (1993). Medical evidence is required to
prove the existence of a current disability and to fulfill
the nexus requirement. Lay or medical evidence, as
appropriate, may be used to substantiate service incurrence.
See Caluza v. Brown, 7 Vet.App. 498, 506 (1995) and Layno, 6
Vet.App. at 469.
The veteran’s August 1965 enlistment Report of Medical
History and Report of Examination show no back abnormalities.
A December 1967 bacteriology report notes a complaint of
recurrent back pain, but test results indicate “no growth”.
A July 1968 notation indicates that the veteran was seen for
low back pain following a lifting episode. The diagnosis was
lumbosacral strain, which was treated with heat and light
duty. The veteran’s August 1968 Report of Medical History
and Report of Examination for separation purposes were
negative as to any back abnormality.
The veteran has submitted medical records from St. Luke’s
Hospital from May 1970, and from January 1988 to March 1988;
from St. Joseph’s Hospital from November 1972 to April 1989;
from Swickard Chiropractic from April 1981; from Heartland
Health System from February 1992; and from North Kansas City
Hospital from December 1992 to December 1993. He as also
submitted a statement from Rosemary Jackson dated in March
1995.
The first medical evidence of a low back condition following
the veteran’s discharge from service are x-rays in November
1972 showing lumbar ledoscoliosis. This is over four years
after the veteran’s discharge. The records also show that
the veteran was seen for lumbosacral pain in July 1973, with
notations that the veteran’s problem probably resulted from
lifting heavy loads in his work around home, and that the
pain came on following lifting heavy things at work. X-rays
were taken which revealed a normal lumbar spine and pelvis.
Also of significance is a February 1978 treament record
indicating that the veteran had presented with a one-year
history of low back pain.
In January 1988, the veteran was hospitalized for complaints
of low back pain, and underwent an excision of the herniated
nucleus pulposus. The veteran also underwent a lumbar
epidural steroid injection in December 1993. The records
also reveal histories provided by the veteran of back
injuries both at work and elsewhere, such as hurting his back
jumping over a fence and hitting his head upon diving into a
pool. Significantly, none of the post-service medical
records submitted by the veteran indicate any relationship
between any current low back condition and any incident of
service.
The veteran has also submitted a statement from [redacted],
dated in March 1995, which stated that she had been
employed by Sharon E. Waggoner, M.D., for some twenty-six
years, retiring in 1989. She indicated that the veteran had
been seeing Dr. Waggoner for back problems, with little
relief from several types of muscle relaxants. She noted
that he continued to have pain and muscle spasms. However,
she did not indicte when he veteran began seeing Dr.
Waggoner, and did not provide (and, as noted below, is not
shown to have the medical expertise to provide) a medical
etiology for the veteran’s low back pain.
The only evidence of record which even suggests that the
veteran’s low back condition was the result of an in-service
injury or disease are the veteran’s own statements in the
various documents he has submitted while advancing his claim,
including an October 1995 statement. However well-
intentioned those statements may be, the Board notes that the
veteran (like [redacted]) is not shown to possess any
medical expertise. Therefore, he is not qualified to render
a diagnosis or to offer an opinion as to the etiology of his
low back condition. See Jones v. Brown, 7 Vet.App. 134, 137
(1994); Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992).
See also Heuer v. Brown, 7 Vet.App. 379, 384 (1995), citing
Grottveit v. Brown, 5 Vet.App. 91, 93 (1993), in which the
Court held that a veteran does not meet his or her burden of
presenting evidence of a well grounded claim where the
determinative issue involves medical causation and the
veteran presents only lay testimony by persons not competent
to offer medical opinions. Where, as here, the determinative
issue involves medical etiology, competent medical evidence
that the claim is plausible is required in order for the
claim to be well grounded. See LeShore v. Brown, 8
Vet.App. 406, 408 (1995).
In summary, the veteran’s service medical records indicate a
condition which was apparently acute, transitory, and
resolved with no further problems during service. The post-
service medical evidence shows no evidence of complaints of
or treatment for low back pain until over four years after
the veteran’s discharge from service, and there is no medical
evidence or opinion of record indicating a relationship
between the veteran’s current low back condition and any
incident of service. As previously noted, a well grounded
claim requires medical evidence of a nexus between an in-
service injury or disease and the current disability in order
to be plausible. In the absence of such evidence, the
veteran’s claim for service connection for a low back
condition must be denied as not well grounded.
In reaching this determination, the Board recognizes that
this issue is being disposed of in a manner that differs from
that employed by the RO. The Board has, therefore,
considered whether the veteran has been given adequate notice
to respond, and, if not, whether he has been prejudiced
thereby. See Bernard v. Brown, 4 Vet.App. 384, 394 (1993).
In light of his failure to meet his obligation in the
adjudication process by not submitting adequate evidence and
because the outcome would be the same whether the claim was
treated as not well grounded or adjudicated on the merits,
the Board concludes that he has not been prejudiced by this
approach. The Board further notes that the difference
between evidence required to render a claim well grounded and
that required to reopen a previously disallowed claim appears
to be slight. See Edenfield v. Brown, 8 Vet.App. 384, 390
(1995) (en banc).
The Board views its discussion as sufficient to inform the
veteran of the elements necessary to present a well-grounded
claim for service connection for the claimed disability, and
the reasons why the current claim is inadequate. See
Robinette v. Derwinski, 8 Vet.App. 69, 77-78 (1995).
ORDER
Service connection for a low back condition is denied.
JACQUELINE E. MONROE
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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